More on what happens to your Web-based email after you die [priv]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: Re: [Politech] Peter Swire on a felled soldier and Yahoo's 
privacypolicy [priv]
Date: Thu, 23 Dec 2004 00:42:07 -0500
From: James Maule <maule () law villanova edu>
To: <declan () well com>

There's another interesting, and confusing twist to Peter Swire's 
analysis. Courts have long held under princicples of public policy, that 
a decedent cannot direct the destruction of property after death. Thus, 
even though one can light a proverbial cigar with a proverbial rolled up 
$20 bill, one cannot order one's cash burned after death. Nor, according 
to several cases, can one order the razing of one's home (even if one 
could do so during lifetime), and this is an issue aside from permits 
and environmental concerns.

The classic hypothetical of the love letters that the decedent orders 
burned puts on the twist by positing that the love letters have value. 
In fact, the more secrets, the deeper the secrets, the more widespread 
those impacted or interested in the secrets, the higher the value of the 
love letters. Thus, for celebrities the issue reaches a peak because 
generally their letters would have higher value. For many of the rest of 
us, the value is lower. For some folks, the value could be so low as to 
be negligible, making destruction of the letters less likely to fall 
afoul of the "no destruction of valuable property after death" public 
policy doctrine.

How do privacy rights affect these mattes? Well, a will isn't private, 
and hence the advise to use a trust. So a direction in a will to destroy 
love letters (or love emails) would alert the public that they exist, 
whereas a direction to a trustee to whom the letters are bequeathed 
would be private, at least as among the parties or until the matter is 
made public through litigation.

There is a huge issue here for estate planners. I get my students very 
disturbed when I ask them to think about a possible premature death and 
the contents of their laptops and email accounts. A hush settles over 
the room, broken by sighs and groans.

Jim Maule
Villanova University School of Law



-------- Original Message --------
Subject: RE: [Politech] Peter Swire on a felled soldier and Yahoo's 
privacypolicy [priv]
Date: Thu, 23 Dec 2004 23:06:18 -0800
From: Ray Everett-Church <ray () everett org>
To: 'Declan McCullagh' <declan () well com>,        'Peter Swire' 
<peter () PETERSWIRE NET>

FWIW, that was the same point I made in my conversation with the
almost-as-swanky CNET News.com. ;)
(http://news.com.com/Yahoo+denies+family+access+to+dead+marines+e-mail/2100-1038
_3-5500057.html) The article didn't quite capture the deeper point I was 
making
or my suggestion, for example, that a probate court might order the 
emails be
considered part of the estate to be released to the executors (who might or
might not be his parents). Meanwhile, while I agree that the privacy 
policy must
be adhered to, Yahoo's slavish citation of the policy as irretrievably 
binding
their hands was needlessly callous. Yes, following a consistent policy 
is very
important, but have a policy that has flexibility for such difficult
circumstances. Given Yahoo's history of reflexively turning over user 
PII every
time some dippy CEO of some penny-stock company was allegedly libeled on a
message board, it just boggles the mind that they decide to get stubborn 
over a
dead soldier. Perhaps nobody had the creativity there to suggest an 
order from a
probate court would give them every bit as much cover as the fishing 
expedition
subpoenas they get by the bushel basket.

Happy holidays!

-Ray


-------- Original Message --------
Subject: Re: [Politech] Peter Swire on a felled soldier and Yahoo's 
privacy policy [priv]
Date: Thu, 23 Dec 2004 13:44:03 -0500
From: James Grimmelmann <james.grimmelmann () gmail com>
Reply-To: james.grimmelmann () yale edu
To: Declan McCullagh <declan () well com>, peter () peterswire net
References: <41CA4CA5.2040208 () well com>

On Wed, 22 Dec 2004 23:42:13 -0500, Declan McCullagh <declan () well com> 
wrote:
>
>              _The policy question._  The next question is whether
> Yahoo!'s approach makes sense or whether instead the family of a
> deceased person should be able to see emails automatically.  One
> possible approach, after all, is to consider the emails as property of
> the estate.  The executor then would get the emails the way he or she
> gets the papers in the house of the deceased.  The executor could then
> decide how to handle the emails.

Why is it not a complete answer to this question to say that Yahoo's
terms of service, which constituted the contract between Ellsworth and
Yahoo, are controlling?  Some people want their emails accessible by
their families after their death.  Some people don't.  Shouldn't these
two groups of people be able to choose by contract which will be the
case?

Either way, the best solution is the one that most respects the wishes
of people when they're alive; I can easily see major email providers
(in the wake of stories like this one) starting to add a check-box in
their account preferences that asks whether the account should
automatically be deleted on death or whether the provider should await
instructions from the estate.  Most of the reasons you cite for or
against turning the emails over provide strong arguments against
imposing one mandatory outcome or the other.

James




-------- Original Message --------
Subject: RE: [Politech] Peter Swire on a felled soldier and Yahoo's 
privacypolicy [priv]
Date: Thu, 23 Dec 2004 09:13:27 -0500
From: Richard M. Smith <rms () computerbytesman com>
To: <peter () peterswire net>, "'Declan McCullagh'" <declan () well com>

Hi Peter,

I still vote for the executor being able to get email account passwords upon
making a request in spite of your cautions.

When a person dies, are there any personal things that an executor typically
wouldn't have access to?

As an aside, once the executor had an email password, they could get other
Web site account passwords to see what someone was up to.  The same email
and password might work at Amazon for example or if the password was
different, Amazon will email the Amazon password to the email account.  A
person's cookie files, cache, and browser history could be used by an
executor to see what sites might have accounts for the dead person.

Richard

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